Legal Question in Medical Leave in California

FMLA and ADA

An employee on FMLA will exhaust the 12-weeks of job protected unpaid leave. The employee has presented a medical note requested a tentative return 1 week past the 12 week FMLA period.

If the employer eliminates the position to which the employee taking leave would return to, due to a downturn in the company, if the employer required by FMLA and/or ADA to allow the employee to return to work?


Asked on 4/15/08, 4:59 pm

1 Answer from Attorneys
Terry A. Nelson Nelson & Lawless

Re: FMLA and ADA

You answered your own question: the law provides only 12 weeks. After that, you are on your own to try to convince the employer to take you back. If you have more than 12 weeks vacation/sick leave coming, you could use that to extend your leave. However, none of the above protects you from layoff, only from 'retaliation'. You can be laid off whether you're on FMLA leave or not if the company has the business reasons you stated. IF you think you can demonstrate actual violation of the protected leave, retaliation, refusal to provide leave, etc., then feel free to contact me to discuss your evidence and facts.

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Answered on 4/15/08, 6:10 pm


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